THE TRUTH FROM WITHIN
(ABOUT THE DYSFUNCTIONAL UN SYSTEM OF JUSTICE)
While discussions of the new system of Justice are underway at the Fifth and Sixth Committees, an insider’s perspective of how justice in the UN was being administered by the “38th floor” may be more valuable to the reform effort than all 26 Recommendations of the “Redesign Panel” combined.
NASR ISHAK *
The former Deputy Head of OIOS Investigations
Department, Mr. Francis Montil of
Australia, has summed up his 10 years of experience
as a globe-trotting investigator and
counterespionage expert in an interview with
the “Sydney Morning Herald” published on 6
October. In an article entitled “The Lies from
Within” by Ms. Kate McClymont, Montil is
quoted as saying that the UN culture is one
in which “the hypocrite, the liar, the fraudster,
the nepotist and the dilettante is more likely
to survive and progress than the average
‘thinking’ reasonable man or woman”. Personal
fiefdoms are fiercely guarded and petty
political power plays triumph over the ideals
of the UN Charter that other staff members
are striving to uphold. The result is akin to
Alice through the Looking Glass.
While Montil’s account provides numerous examples of misconduct and corruption at the top, he says that it was his Division’s investigation into allegations of sexual harassment by Ruud Lubbers, the UN’s High Commissioner for Refugees that “encapsulated all that was wrong with the UN”. He confesses to facts which have so far been untold in this story that attracted world-wide headlines after a female staff member (usually described in the media as an “American woman”) had filed claims of sexual harassment against Ruud Lubbers and the then Director of UNHCR’s Division of Human Resources Management (DHRM). That staff member is Ms. Cynthia Brzak.
According to Montil’s account, when his office received Brzak’s complaint in writing, ”it also received a call from the Secretary-General’s office on the 38th floor”. Montil says the caller was a senior member of Annan’s staff and explains that the purpose of the call was to alert them to the fact that the complainant was an American woman, and therefore a neurotic attention-seeker who was no doubt exaggerating the incident. ”They were hoping for a whitewash,” says Montil, pointing out that the 38th floor “was keen to avoid any embarrassment”. That type of conduct speaks volumes about the commitment of ”senior members of Annan’s staff” to upholding or respecting the independence of oversight bodies.
By way of disclosure of personal interest in the story, I was one of the persons who counselled Ms. Brzak before and during the OIOS investigation started. I can therefore say that – far from being a neurotic attentionseeker as alleged by the caller from the 38th floor – Ms. Brzak’s nightmare was exacerbated by spontaneous media attention disrupting her life, causing many forms of unrelenting distress not only to her, but also to those closest to her including family, friends and colleagues.
Despite Lubbers’ resignation in February 2005, Ms. Brzak continued to be subjected to various forms of harassment, retaliation and mobbing. The new Director of DHRM at UNHCR – after only 12 days in office – wrote to Ms. Brzak saying he was contemplating to abolish her post. In the context of a “culture of impunity”, it was not difficult to expect that Ms. Brzak would suffer retaliation as a whistleblower. But the powers-that-be seem to have also decided that I should be punished too because they were given to understand it was my advice to Ms. Brzak that led her to file a formal complaint against Mr. Lubbers.
Ms. Brzak initially filed an appeal with the Geneva JAB but soon discovered – well before the Redesign Panel did - that the administration of internal justice was dysfunctional and ineffective and that there was no chance of getting redress through that system. But the fact that such abusive behaviour could take place in a world body promoting human rights has been a travesty which neither Ms. Brzak nor I could accept. Moreover, despite Lubbers’ resignation, other culprits were still at large, engaged in racketeering and boasting about their impunity. Numerous appeals for protection from retaliation made to the UN Ethics Office seem to have fallen on deaf ears.
In May 2006, with the help of her attorney, Ms. Brzak and I jointly filed an action claiming retaliation and other illegal action under the US 1964 Civil Rights Act against the United Nations, Kofi Annan, R. Lubbers, et al. in the US Supreme Court. Although we expected that the US Supreme Court would deny our application to hear the case as the ‘court of first instance’, we had further plans. We took our case to the US Federal District Court in New York as well. The UN’s Office of Legal Affairs then immediately requested the United States to fulfil its treaty obligations and protect UN immunity in its territory. It is significant that the US Government – rather than simply telling the Court it must dismiss the case on account of diplomatic immunity – in a letter dated 2 October 2007 told the Court that “(the US Government) is not taking a position on the applicability of official-acts immunity to any of the allegations in this case”.
Attorney will present arguments that if diplomatic immunity is not lifted when criminal acts are committed, it is a violation of the constitutional right of Ms. Brzak’s attorney will to judicial process. In any event, immunity should have been lifted because it is intended only to protect staff in the performance of their official functions.
While the hearing of these arguments is scheduled to take place at the New York District Court on 31 October, it will certainly be relevant to recall the findings of the Redesign Panel about the state of the UN’s internal justice system. And if effective reform of the United Nations cannot happen without an efficient and independent internal justice system as the Redesign Panel has concluded, then the UN General Assembly and the Secretary-General should realize that reforming the UN Secretariat should start from the 38th floor downward (and not the other way around).
* The author is the Chairman of UNHCR Staff Council
See article in Sydney Morning Herald published on 6 October at the following link:
http://www.smh.com.au/news/world/the-liesfrom-within/2007/10/05/1191091362089.html
